Representative Nadler underscored why a thorough investigation of the judges’ hiring the clerk should be a matter of congressional oversight and public concern in explaining that “[w]e must assure the public that these judges’ chambers are free from racial and religious bias and committed to equal justice under law.” Representatives Nadler and Johnson warned that a clerk’s “presence in a judge’s chambers . . . can potentially jeopardize the ‘basic right to a fair trial in a fair tribunal’ that undergirds our judicial system.”
Despite these concerns, on the return of the matter to the Second Circuit Judicial Council, the Council unanimously declined to reconsider their earlier dismissal order, concluding that the Second Circuit’s dismissal order was final and not reviewable on appeal or otherwise. In February 2024, news broke that Associate Justice Clarence Thomas selected the same law clerk whose hiring led to the judicial misconduct complaint to serve as one of his law clerks in the U.S. Supreme Court.
In a third high-profile controversy, former President Donald J. Trump lambasted the law clerk for the judge presiding over his fraud trial. Trump used social media to accuse the clerk of political bias against him, triggering hundreds of threats and harassing messages. In a mistrial motion, Trump’s lawyers echoed complaints of bias, referring to the law clerk as a “de facto co-judge” who is a Democrat biased against Trump.
These three controversies involving judicial clerks point to the behind-the-scenes role and ethics of judicial clerks. Although clerks laboring in chambers impact daily decisions throughout the federal and state judiciaries, examination of their influence and conduct has been narrow in scope. Much of the scholarship and commentary on judicial clerks relates to clerks serving in the U.S. Supreme Court and federal circuit courts. Less attention has focused on clerks appointed in other federal courts and in state supreme courts. This article will help fill the gap by examining issues related to the influence and hiring of clerks throughout the federal and state judicial systems. Specifically, it focuses on why the general public should have open access to information revealing the identities of judicial clerks. I offer a modest proposal to promote transparency and enable litigants, clerkship applicants, and other members of the public to know who is serving in these governmental positions.
To provide context on the role of clerks, this article briefly discusses the influence of judicial clerks and the value of disclosing the identity of judicial clerks. After outlining data currently available on clerks and calls for more transparency related to clerks, the article discusses how the lack of information on clerks can be addressed through simple disclosure of clerks’ names on the web pages of federal courts and state appellate courts. It also examines possible consequences associated with making such information publicly available and how disclosing clerks’ identities can promote transparency and public confidence in the judiciary while preserving judges’ autonomy in selecting their clerks.
Role and Influence of Judicial Law Clerks
In asserting that the selection and identity of judicial clerks are matters of public concern, congressional leaders pointed to the significant role that clerks play, referring to clerks’ “unique position [to] have direct input into a judicial decision.” In a 1957 article that provided an insider’s perspective on judicial clerkships, the late Chief Justice William H. Rehnquist emphasized that the role of U.S. Supreme Court clerks in preparing opinions and handling petitions for certiorari varied from justice to justice. Supreme Court clerks now review petitions for certiorari, write memoranda summarizing petitions, recommend whether to grant or deny review, write bench memoranda that prepare the justices for oral arguments, and prepare the first drafts of majority, concurring, and dissenting opinions.
Although outsiders do not know precisely what transpires in particular judicial chambers, a few studies shed light on judicial clerks’ influence. These studies tend to focus on the impact and role of federal law clerks, with most of the attention on U.S. Supreme Court clerks and clerks serving in the federal appellate courts. Although there are vast differences among the state and federal judiciaries related to how clerks are selected and used, the research illuminates possible areas where clerks influence decisions and judicial processes. Using a model and empirical examination of political ideologies, one study found that U.S. Supreme Court clerks exert modest influence on judicial voting overall but substantial influence in cases that are high-profile, legally significant, or close decisions.
Outside the U.S. Supreme Court and federal appellate courts, clerks working in federal district courts also may assist in cases that impact persons in their own jurisdiction and across the country. Recognizing that the hundreds of federal district court clerks who process thousands of cases a year may “potentially have more day-to-day influence over individual litigants and cases than the approximately three dozen Supreme Court law clerks,” one group of researchers conducted a survey to obtain data on the role and influence of federal district judges. Survey responses from 311 out of approximately 956 judges revealed that 97 percent of the judge-respondents reported that their clerks review relevant briefs and draft memoranda and orders regarding dispositive motions. After summarizing other results related to the clerks’ duties, the researchers concluded by stating that “institutional conditions already exist for the exercise of influence by these clerks” and suggesting that “a new dialogue should begin over whether federal district court law clerks warrant the label of ‘junior judge.’”
The term “junior judge” or “shadow judge” may describe more the work of career clerks hired on a longer-term basis, as compared to term clerks who serve for one or two years. The role and responsibilities of the career clerks largely depend on the judge’s preferences and docket. For example, a career clerk may handle heavy pro se filings by incarcerated persons. In such situations, there may be risks of over-delegation and “shadow judging” if the clerks make dispositive decisions with limited oversight by judges. Without disclosure of the identity of these clerks who handle pro se matters, litigants must struggle to determine who may be effectively deciding their cases.
Currently Available Information on Clerks and Calls for More Transparency
Despite the fact that judicial clerks may play important roles in judicial decision-making, public information on persons serving in clerkships is sparse or nonexistent. A court watcher may use crowdsourcing to develop information on the identity of clerks. Notably, one commentator asks the public to provide information on the identity of Supreme Court clerks and then publishes the names of those clerks, along with limited information, including the names of the clerks’ law schools and courts where they previously worked. Wikipedia also provides tables with the names of persons who have served as clerks in the U.S. Supreme Court since the first clerk was hired in 1882.
Other than such information on U.S. Supreme Court clerks, little public information can be found on clerks serving in other positions in federal and state judiciaries unless individual courts post such information on their web pages. Authors who studied diversity and clerkships referred to the “opaque nature of the hiring process” and the “lack of complete, publicly available data on the demographics of federal law clerks from year to year.”
The National Association for Law Placement (NALP) annually releases a comprehensive report on the employment and salaries of recent graduates. Although this report provides salary and comparative information for different employment sectors, it includes limited demographic information on clerks. An examination of NALP data from 2006 to 2016 provides more specific information on the demographics of clerks. Although these analyses may provide some general information related to trends, the data are reported without information on the location or level of court.
A litigant with financial resources may subscribe to services that provide information or hire litigation support professionals to assist in obtaining information on judges and clerks when making decisions, such as whether to elect a jury trial over a bench trial. Litigants without the means to fund such investigative work may be left with no information on the identity of clerks who may influence the analysis and handling of the issues in their cases. On the other hand, litigants with information on a clerk may be better prepared to determine how they present their cases and whether to proceed to trial or settle.
Persons who recognize the important roles that clerks may play in judicial decision-making have called for more transparency. One author suggests that greater transparency may mitigate some problems associated with an unregulated market. Other proponents of more transparency recognize the value of collecting and disseminating data on persons serving in judicial clerkships. Based on interviews with 50 active federal judges, Judge Jeremey Fogel, Professor Mary S. Hoopes, and Associate Justice Goodwin H. Liu propose data collection and reporting as a key starting point for motivating and framing discussions about clerk selection and diversity. They propose that an official, complete, and public annual report include information such as clerk demographics and law schools attended but not reveal identifiable information about any judge or clerk.
Although aggregate demographic reporting would provide more information than is currently available, such disclosure does not include the names of the clerks serving in particular courts. Federal and state judiciaries can easily address this gap by publicly disclosing the names of current clerks. The following section discusses how providing such information could impact clerkship applicants, law schools, clerks, and litigants while promoting public confidence in accountable judiciaries and preserving judges’ prerogatives to make hiring decisions.
Possible Impacts of Judiciary Disclosing Clerks’ Names
Despite the explosion of published information related to the employment of lawyers, the identities of judicial clerks tend to be shrouded. One simple step to unveil judicial clerkships would be for federal and state judiciaries to provide clerks’ names on their web pages. This modest amount of information promises to make clerkships more transparent in providing all litigants and the general public with information on government employees who may play significant roles in judicial decision-making.
Law students and others applying for clerkship positions may be the people most interested in easily accessing information on both state and federal clerkships. Because applying for several clerkships takes time and energy, applicants can benefit from easy access to the names of persons selected to serve as clerks for particular judges. Such information may better enable applicants and their schools to evaluate possible hiring patterns, such as judges who exclusively hire from feeder schools.
Disclosing clerks’ names also enables interested career counselors and applicants to conduct their own online research on selected clerks. Such research could promote efficiency by revealing whether some judges appear to be using litmus tests or selection criteria such as organization memberships in hiring decisions. This also has a leveling effect on applicants from schools that do not devote significant resources to gathering intelligence related to clerkships.
Disclosure of names will facilitate applicants later contacting former clerks to obtain information on their hiring and experiences. This may be particularly helpful to applicants who are not part of the “whisper network,” through which former clerks privately warn others about judges’ misconduct. Former clerks may be more willing to share such negative experiences with individual applicants who contact them instead of communicating them through a more public channel.
In addition to making it easier for more applicants and career counselors to discern hiring patterns easily, disclosing the names also may contribute to judges hiring beyond a narrow circle of schools. With the identity of clerks readily available, judges also may be somewhat less reluctant to make hiring decisions based on social ties where objective qualifications appear to be lacking.
Public disclosure of hired clerks may incentivize judges to seriously consider diversity when hiring clerks. Releasing the names of clerks also may promote discourse among judges about successful efforts to recruit diverse clerks. As stated by one federal judge, it is important to “have judges talk to judges” and to “[g]et information out there about how successful these diverse clerks have been and are.”
More transparency may help diffuse polarization among appellate justices if judges rethink their heavy reliance on ideology when selecting clerks who share the judges’ ideologies. Experts have cautioned that the ideological sorting of clerks may exacerbate already-existing levels of polarization.
Providing the names of term and career clerks also enables litigants to easily access the information to determine if there are recusal concerns. The impartial adjudication process relies heavily on judges and their clerks addressing potential conflicts of interest. Depending on the access to information, diligence exercised, and personal assessments, judges and their clerks may not recognize a conflict that may concern litigants. The failure to recuse may be due to the fact that some courts and judges may not have clear recusal rules for clerks and that the guidance for clerks is “varied and thin.” Because parties may not be able to rely entirely on clerks recusing themselves, litigants should easily have access to the names of clerks in order to independently evaluate possible conflicts, including those created by clerks’ prior positions and affiliations with advocacy groups.
In shaping their cases, litigants also may benefit from knowing the identity of clerks who might influence judicial decisions. This may benefit most pro se litigants and those with limited means to hire trial and appellate consultants. In particular, career clerks’ names should be easily accessible because these attorneys may function as institutional and influential players over multiple years.
Website disclosure of clerks’ names also may influence the culture of the judicial workplace if judges and clerks better recognize clerks as public servants. Both state and federal clerkships are extraordinary professional opportunities funded by taxpayers. As a matter of accountability, members of the public should know who is selected for positions that propel clerks’ career trajectories.
Posting the names of clerks serving in the federal judiciary and state appellate courts will advance transparency. If members of the public can easily learn who may play important and influential roles in handling court affairs, this will promote confidence in the judiciary.
Any evaluation of the proposed disclosure requires a candid assessment of possible negative consequences and costs associated with posting information on court web pages. Disclosure would entail administrative expenses related to collecting and posting information, but the expenditure would likely be very modest.
The more significant obstacle may be overcoming the resistance of judges concerned that disclosing the information may impact their autonomy and independence in selecting clerks. Judges’ reactions to more transparency may be mixed. As noted by Judge Fogel, Professor Hoopes, and Associate Justice Liu:
Based on our interviews, we believe many judges would welcome a degree of transparency in order to set the table for discussion of clerk hiring with their colleagues and faculty contacts. We recognize, however, that other judges may resist such transparency because they worry the data will cast the judiciary in a negative light or bring public pressure to bear on hiring decisions.
Another risk is that public disclosure of clerks’ names may make it easier for persons to attempt to engage in ex parte contact or harass clerks. Former President Trump’s criticism of the clerk in his New York fraud case illustrates that public knowledge of clerks’ identities may subject clerks to scrutiny, criticism, and even harassment. Even though the Trump clerk controversy presents unparalleled circumstances for a litigant with a world stage to question the impartiality of the clerk who sat beside and conferred with the trial judge during court proceedings, courts should be prepared to deal with the possibility of improper contact and harassment if clerks’ names are publicly disclosed. Judges could issue gag orders, impose sanctions, hold persons in contempt, and report attorney misconduct to disciplinary authorities.
One of the most serious concerns related to disclosing clerks’ identities is that it may lead to some qualified applicants not pursuing positions with judges whose records reflect selection profiles, such as hiring clerks from particular schools. Self-selection out of the hiring pool may contribute to judges not departing from their historical hiring patterns if they do not receive applications from diverse applicants. Judges can help address the self-selection risk by encouraging and considering a wide array of applicants. Career services personnel should also assist applicants in collecting data and navigating the application process.
Conclusion
For decades, judicial clerks have diligently labored in chambers with limited public knowledge of their roles and selection. Empirical studies related to federal judicial clerk influence and hiring, coupled with recent controversies related to clerks, raise questions on whether steps should be taken to disclose the names of persons serving in clerkship positions. The simple posting of clerks’ names on court websites could make the identities of clerks easily accessible to litigants, clerkship applicants, and other members of the public.
As recognized in the U.S. Judicial Conference’s Strategic Plan, “In large part, the judiciary earns trust and confidence by faithfully performing its duties; adhering to ethical standards; and effectively carrying out internal oversight, review, and governance responsibilities.” By taking steps to provide more transparency in reporting clerks’ names, state and federal courts will help foster public trust, confidence, and accountability while preserving the judges’ prerogative to select those clerks the judges believe will most capably contribute to the important work of the court.